The American Bar Association reports that 100 million Americans are effectively barred from seeking justice by the high cost of lawyers and the lawsuit system. In fact, the ABA Journal reported that most lawyers wouldn’t even take a case that is worth less than $20,000. The complaints of most consumers don’t begin to approach that level. Thankfully, arbitration gives those boxed out of the legal system an opportunity to have their claim heard.
Congress has long encouraged arbitration and the U.S. Supreme Court has repeatedly upheld it as a fundamental contractual right. That right has come under attack by personal injury lawyers who are fiercely trying to preserve their monopoly on the civil justice system. While it provides a welcome option from the need for money eating, emotionally draining litigation, there are changes that can make this alternative more consumer friendly.
Clearly, arbitration is a trade off. Consumers freely choose to forego a trial by jury in favor of this option, which typically provides a quicker, cheaper and confidential way to resolve a dispute.
Increasingly, consumers are “freely” agreeing to submit disputes to alternatives to the court system when they purchase items ranging from computer software to cell phones, cars to homes. The key word is “freely.” Some critics – typically personal injury lawyers who make a living by filing lawsuits – argue that consumers have no real choice. These lawyers and their surrogate critics claim that ordinary folks are being “forced” to use arbitration and that takes away their constitutional right to a jury trial.
Fact is nobody can take away an individual’s right to a jury trial. An individual can, however, agree to give up that right. That is precisely what people do when they agree to arbitrate. This is no different, in that respect, than agreeing to any other contract term. There is nothing forced or mandatory about it.
Parties are entitled to the same substantive rights and remedies through arbitration as they are in court. The benefits are many: you cut to the chase without all the legalese, endless discovery, delays and procedural maneuverings that go on in court.
It commonly takes two and a half years or more to get a civil case before a judge; an arbitration case can often be resolved within a matter of weeks. Just like in court, a plaintiff can hire outside counsel to represent him in arbitration on a fee or contingency basis. The defendant will have an information advantage in terms of how similar cases have been resolved. However, the plaintiff’s lawyer should be the equalizer that brings qualifications, experience and a talent for discovery.
Critics often claim that arbitrators favor defendants in their rulings. Yet the only study comparing arbitration and jury awards found that arbitrators tend to rule in favor of the plaintiff more than juries and those similar amounts of damages were awarded in comparable cases.
The Texas Legislature has enacted numerous safeguards to assure that this system’s provisions are enforceable only if they are fair and knowingly agreed to by consumers.
Asbestos is a naturally occurring fiber used for many years in a number of products, including brake linings. Breathing the fiber for many years can cause asbestosis, a condition that is not curable.
Decades after the first asbestos case was filed in Beaumont alleging harm from asbestos exposure, these cases have flooded into our nation’s courts. No state has felt the burden of this litigation landslide more than Texas, where as many as 40 percent of all claims nationally have been filed in recent years.
Most of these lawsuits – some put estimates as high as 89 percent – were filed on behalf of plaintiffs with questionable claims or who are not impaired.
The Texas Legislature in 2005 passed Senate Bill 15, major asbestos litigation reform that took effect Sept. 1, 2005. The new law brings much needed fairness to the asbestos litigation process so that the truly injured receive the compensation and help they need, as opposed to waiting in line behind thousands who are not sick. The law also protects employers that have nothing to do with asbestos from being targets of frivolous lawsuits.
Unfortunately, SB 15 will not affect the cases already in our state’s judicial system, including thousands of new ones which were filed in the time period between the passage of the law and when it took effect.
CALA will be watching for attempts by personal injury lawyers to weaken this reform.
Some personal injury lawyers are using hype and scare tactics – not facts – to solicit new clients.
A statewide CALA survey in 2005 showed that more than 3 out of 4 Texans believe that personal injury lawyer advertising encourages people to sue, even if they have not been injured.
A separate survey showed that 9 out of 10 patients would be concerned if they saw an advertisement for a lawsuit involving a medication they take. One in 4 said that they would immediately stop taking that medication. These ads can be dangerous for consumers.
The State Bar of Texas in 1995 adopted advertising standards to protect consumers from false and misleading promotions.
CALA supports stricter guidelines for disclosure in personal injury lawyer ads.
CALA encourages consumers to report inappropriate ads to the Texas State Bar and to be wary of scare tactics and half truths in legal advertising.
At times in your life when you and your family are most vulnerable – following an accident or the death of a loved one – Texas law protects you from unwanted and overly-aggressive advances from personal injury lawyers (or their representatives) trolling for new clients and new ways to sue.
Such aggressive tactics are labeled as barratry – although they are more commonly referred to as “ambulance chasing.” And it is illegal.
Barratry – which is a felony offense in Texas – can take many forms:
- an unsolicited call or visit to your hospital room after an accident;
- an unsolicited visit at the funeral home following the accidental death of a loved one;
- a visit or call to family members of someone who has suffered an accident or lost a loved one;
- the offer of cash up front to sign on with a particular personal injury lawyer or firm.
Texans who received unwanted advances from aggressive personal injury lawyers, or their representatives, should report the person involved to the State Bar of Texas.
Know Your Candidate and Their Source of Funding
Before Texans head to the ballot box, CALA encourages them to investigate a candidate’s sources of funding. Only then can citizens fight special interest influences. Political clout shouldn’t be on the auction block.
Judges make decisions every day that directly affect many aspects of our lives including our economy, our schools, our community safety, our healthcare and more. Yet, for most of us, our judiciary is the least understood branch of government.
Citizens Against Lawsuit Abuse conducted a statewide public opinion survey of Texas voters and their views on judicial elections. Our survey showed that while a large majority of voters are interested in these elections, more than 3 in 10 skip statewide and local judicial contests entirely or only vote in some of them. Seventy-four percent of these voters say they simply don’t know enough about the candidates for judicial office to make an informed decision.
Texas judges at all levels wield considerable power, and their decisions can set important legal precedents. Decisions from our Texas Supreme Court are final, unless the cases make it all the way to the U.S. Supreme Court.
Judges also determine the tenor of the courtroom and can ensure all parties are treated fairly under the law. The judiciary can also choose to uphold or overturn laws that were carefully crafted and passed by the state legislature.
Finally, judges can spare us all the cost and consequence of lawsuit abuse by dismissing baseless cases. Many remember Judge Janis Jack in Corpus Christi who dismissed nearly all of the 10,000 silicosis cases before her, declaring that the diagnoses used in the cases had been “manufactured for money.”
Judge Jack is an appointed federal judge, but she’s a good example of a judge who exercised sound judgment for the good of the people.
Texas needs good judges and we should not leave their election in the hands of others. Just as we make a point to get to know our children’s teachers or our own doctors, we should all make a point to learn about the judges elected to the bench in Texas.
CALA also urges voters to watch for large candidate donations by personal injury lawyers, who want to undo the significant civil justice reforms enacted in Texas.
Class action lawsuits were designed to be the “little guy’s” best shot at justice by allowing individuals with similar grievances to band together to file a single claim. Class actions have had some positive results over the years for consumers. They have forced product recalls or stopped discriminatory behavior.
In general, however, class actions have become some of the most blatant examples of lawsuit abuse.
Personal injury lawyers pursue claims hoping to score big legal fees (as much as 50 percent) for themselves. While they score millions, the plaintiffs receive little in the way of award (sometimes mere pennies). Many plaintiffs do not even know they are part of a class action lawsuit.
Reforms passed in Texas have limited attorneys’ fees in class action cases and prohibited giving coupons to plaintiffs as awards unless that’s how the lawyers also are paid.
Even with these state regulations, changes are still needed on the federal level.
Junk food shouldn’t lead to junk lawsuits.
In 2002, a New York man sued a fast-food restaurant, claiming it was responsible for his obesity and other health-related problems. Similar lawsuits quickly followed.
In June 2005, Texas became one of 21 states (at that time) to pass legislation that prevents consumers from suing a restaurant or food manufacturer for obesity or other health-related claims. This legislation – known as the “cheeseburger bill” – limits the “blame game” played by individuals who abandon personal responsibility for the consequences of their mealtime selections.
According to USA Today (1/31/05), 90 percent of U.S. residents believe food companies should not be held liable for obesity-related health conditions.
Lawsuit abuse limits our access to health care because it drives up the cost for everyone and threatens the development of new life-saving medications, innovation, procedures and devices.
In the early 2000s, frivolous claims against medical professionals had driven up the cost of medical liability insurance and caused many carriers to pull out of the Texas market. As a result, many doctors – particularly in high risk specialties – shut down their practices or relocated to less lawsuit-friendly states.
Texas was facing a health care crisis.
In 2003, the Legislature passed some of the nation’s most far-reaching, significant reforms to curb health care lawsuit abuse. Voters also signaled they were sick of health care lawsuit abuse when they passed a cap on the non-economic damages – pain and suffering, emotional distress, and other hard-to-define items – that could be collected through medical malpractice lawsuits.
Texans quickly began seeing positive changes to our health care system – even though personal injury lawyers rushed to the courthouse to file thousands of new cases before the law changed.
Today our state no longer is on the American Medical Association’s list of “crisis” medical liability states. Thousands of new doctors are now practicing in Texas, including many with high-risk specialties such as obstetrics and neurology. New medical liability insurance companies writing policies in Texas mean more choices and lower rates for doctors.
CALA wants to keep health care available and affordable for those who need it. We are working to preserve these gains and prevent new personal injury lawyer attacks on our health care system.
Jurors expect to hear the truth from the witness stand, especially when a witness is billed as an “expert” and has impressive sounding credentials. Unfortunately, these factors don’t guarantee that witness testimony is credible, or even particularly accurate. In the case of an expert witness, testimony may be skewed to favor whichever side has hired him or her.
This questionable practice – “junk science” – taints our entire civil justice system. Junk science props up frivolous and questionable health care lawsuits that scare consumers, keep beneficial medications off the market, drive up health care costs, and limit medical research and innovation.
The Texas Legislature in 2005 failed to pass legislation which would have helped curb the practice of junk science by setting standards for testimony by out-of-state physician witnesses.
CALA supports legislative efforts to crack down on junk science.
Every citizen can do his or her part to bring fairness and balance to the civil justice system by serving on a jury when called. By interpreting the facts and returning an impartial verdict, jurors make sure our courts are being used for justice, not greed.
Americans seem to support our country’s jury system – 69 percent of those surveyed by the American Bar Association said they consider juries to be the most important part of their legal system.
But, when called to serve, many evade their jury summons.
In the largest counties in Texas, less than 25 percent of those called for service actually show up. A report by the American Legislative Exchange Council found the refusal rate nationwide was greater than 90 percent in some urban areas.
Jurors themselves have said more citizens would participate if counties would provide parking reimbursement, better juror pay, childcare services and more education about jury services.
Local and state officials are listening. As of Jan. 1, 2006, juror pay across the state increased from $6/day to $40/day after the first day of jury service
While steps can be taken to encourage jury participation or make it easier to serve, response rates won’t improve until each citizen takes this responsibility as seriously as our founding founders did when they created our system of justice.
Legal Consumer Rights
CALA isn’t against all lawsuits or against hiring a lawyer – our legal system should be used to help those who with legitimate injuries or claims.
Being a smart legal consumer can be the best weapon against lawsuit abuse.
To help Texans who need to hire a lawyer, CALA has published a Legal Consumer Guide to help legal consumers understand their rights, ask the right questions and avoid some potential pitfalls when searching for legal representation.
Each citizen must take responsibility to protect his or her legal rights and stop the abuse of the legal system.
For a free a copy of the Legal Consumer Guide, click here to download or click here to request via mail (The first “here” will link to a pdf and the second “here” will link to the form under “Get Involved”)
Every action we take in life carries with it some risk. The question is, when do we take personal responsibility for our actions – and their consequences – and when is it OK to blame others?
CALA advocates an end to the “blame game,” the increasing practice by many in society to use lawsuits to solve a problem rather than taking personal responsibility for the consequences of their actions.
Texas Supreme Court Elections
Voters faced with lengthy Election Day ballots all too often skip the races they know the least about – usually judicial ones.
Yet the races for Texas Supreme Court can have a tremendous impact on Texans’ daily lives. Justices rule on issues of great importance to consumers, including workplace harassment, workers’ compensation, product liability and personal injury lawsuits.
In recent years, our court has an established record of applying the law as it was written by the Texas Legislature.
Some personal injury lawyers are challenging the current balance of our state’s highest civil court. They miss the “good old days,” when the court was known for creating up new ways to sue – creating law, instead of interpreting the law.
Texans must be vigilant to preserve their fair access to justice in the future. Voters should closely examine the candidates’ backgrounds, as well as the source of their campaign funding. Particular attention should be paid to the funding behind obscurely named political action committees.
Our Texas Supreme Court must continue to apply the law as written, not legislate from the bench, in order to preserve our system of justice.